Houston Matters

Sandra Day O’Connor wasn’t the first woman considered for U.S. Supreme Court

UH law professor Renee Knake Jefferson tells us about some of the women who appeared on short lists of presidents before O’Connor was nominated.

Sandra Day O'Connor being sworn in as the first female Supreme Court Justice on Sept. 9, 1981. She served for more than a quarter of a century. She died at 93.
Wally McNamee/Corbis
Sandra Day O’Connor being sworn in as the first female Supreme Court Justice on Sept. 9, 1981. She served for more than a quarter of a century. She died at 93.

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As tributes continue to be shared about the late retired Supreme Court Justice Sandra Day O'Connor, who died Friday, University of Houston Professor of Law Renee Knake Jefferson is calling attention to other women who could have been the first to sit on the nation’s highest court.

Justice O’Connor was appointed by former President Ronald Reagan in 1981 and served on the high court for a quarter century. But in Knake Jefferson’s book, Shortlisted: Women in the Shadows of the Supreme Court, the author writes about nine women who, before O'Connor, appeared on presidential shortlists for the high court, including one dating all the way back to the 1930s.

Jefferson, a Professor of Law and Chair of Legal Ethics at the University of Houston Law Center, spoke with Houston Matters on Monday about some of those women, as well as about Justice O’Connor’s legacy and impact on women in the field of law.

"I was so sad. It really marks a milestone in this nation’s history that is so important," Jefferson said of her reaction to O'Connor's death. "Of course, we are all remembering that she was the first woman to sit on our Supreme Court, appointed in 1981 by President Reagan. But she was so much more. I immediately thought of a quote that she often would say, which is that she appreciated being the first on the court, but she didn’t want to be the last. In other words, she felt enormous pressure to be the very best in every way on behalf of all women, which is really an impossible task. And yet she did it."

Jefferson said O'Connor achieved career success in being appointed to the highest court in the land, but she also inspired women across the country.

"She really inspired the entire country to pursue and embrace women in professional life across all sectors, whether in law or beyond," Jefferson said. "And so, I think it’s really a moment to reflect on what she contributed, especially at a time where we see in some areas of our national life, women’s rights perhaps not being fully embraced as she would have wanted to see."

O'Connor wasn't the last woman to be on the Supreme Court, but it did take a while before there was another woman appointed to the court. The next woman appointed was Justice Ruth Bader Ginsburg in 1993.

"The presidents who had vacancies chose not to put more women on the court," Jefferson said. "In fact, Ronald Reagan himself, he delivered on his campaign promise to give the nation its first female justice. But he had additional vacancies and I've seen his shortlist of those additional vacancies and very qualified women’s names appeared, sometimes more than once. But he apparently decided having put one woman on the court, that was sufficient."

It’s still a phenomenon seen in professions all over, Jefferson said.

"We feel that representation or diversity is achieved because there’s one person who’s different than everyone else."

Justice Sandra Day O'Connor poses for photos on the steps of the Supreme Court before being sworn in with her family on Sept. 26, 1981. From left are: Justice O'Connor's father, Harry Day; her husband, John J. O'Connor; her mother, Ada Mae Day; O'Connor; Chief Justice Warren Burger; and her sons, Brian, Jay and Scott.
Justice Sandra Day O'Connor poses for photos on the steps of the Supreme Court before being sworn in with her family on Sept. 26, 1981. From left are: Justice O'Connor's father, Harry Day; her husband, John J. O'Connor; her mother, Ada Mae Day; O'Connor; Chief Justice Warren Burger; and her sons, Brian, Jay and Scott.

Justice O’Connor wrote opinions on issues in her time on the court, from abortion to affirmative action to states' rights to campaign finance and more. When her name was being floated as a nominee, many people wrote letters and telegrams to President Reagan, with concerns of her opinions on abortion, Jefferson said.

"The outcry was on sort of both sides. Would she support abortion rights? Would she not? And what would happen? And so that was perhaps one of the most anticipated positions that everyone was looking for," she said. "And when she confronted questions about abortion in her opinions, she recognized the fundamental right of women to have that choice, although she did uphold additional restrictions beyond Roe v. Wade. I think it's safe to say, though she would not have been in the majority opinion in Dobbs."

In her research, Jefferson found nine women who were shortlisted going back to the 1930s. One was Amalya Kearse, who currently is a judge on the Second Circuit Federal Court of Appeals.

"But she was the only African American woman of that cohort and her name showed up on the shortlist that Reagan had prepared, where he selected O’Connor and her name came up again both when Reagan had vacancies, her name was floated when Clarence Thomas’s nomination looked like it wouldn’t go through, and possibly she would have been considered there. Her name was again on a shortlist when President Clinton gave a Supreme Court seat to Justice Breyer."

Jefferson pointed out that Breyer's seat did eventually go to a Black female justice: Ketanji Brown Jackson.

"I think (Kearse) is an important part of our history, and certainly counters any narrative that would suggest women of color haven’t been long qualified for the court well before they were joining the court."

The first woman to show up on a president's shortlist was Florence Allen. She was the first female justice on the Ohio supreme court.

"FDR ultimately put her on the Sixth Circuit Federal Court of Appeals, the first woman to sit on a federal Court of Appeals," Jefferson said. "This was in the 1930s. When she joined that court, there wasn't even a bathroom for women in the courthouse."

Jefferson said Allen "literally created a path for women who would come next."

"Imagine what this nation might have looked like and what our Supreme Court might have looked like if we’d had a woman on the court in the 1930s," Jefferson said. "One of the things that’s so important is not just having a court that represents the public it serves, but also for individuals to see themselves reflected in public life. In that way, I think we probably would have seen a lot more progress."